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Introduction: The Future of Chinese Law*

Published online by Cambridge University Press:  12 February 2009

Extract

The interaction between the millennial dominant orientations of Chinese culture and the entire impact of modernization and of Marxism-Leninism is a story that is unfolding before our eyes, and we have no neat formula for predicting its outcome

By focusing on legal reforms this Special Issue of The China Quarterly draws attention to a group of institutions whose fate is crucial for China's future. The economic reforms that have transformed China since the late 1970s are generating new institutions and transactions that demand legal definition. The surge of foreign direct investment that has made China the world's largest capital-importing country makes necessary further development of the legal framework for foreign trade and investment. More-over, forces broader and needs deeper than those produced by economic development will also help to impel Chinese law reforms.

When the Chinese leadership turned its attention to creating a legal order after the end of the Cultural Revolution, one of its expressed concerns was to reduce official arbitrariness. Even though the totalitarian grip of the Chinese Communist Party has weakened since then, concerns about arbitrariness are no less and can only increase. Furthermore, if China is to cope with the many problems that are by-products of economic reform, including a decline in social order, spreading corruption and a general crisis of values, it will need strong legal institutions and a legal culture that promotes the rule of law. The rule of law has become an issue for many more Chinese than just their leaders or intellectuals.

Type
China's Legal Reforms
Copyright
Copyright © The China Quarterly 1995

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References

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26. Ibid. p. 37.

27. Potter, p. 167.

28. See e.g. Potter, pp. 174–76, Feinerman, p. 193.

29. Potter, p. 156.

30. Ibid. p. 174.

31. Feinerman, pp. 186–87.

32. When it was reported that eight Chinese athletes had tested positive for drug usage at an international competition, one observer noted that when China lost face in sport circles “its credibility was harmed in a broader sense, at a moment when it is seeking closer integration with the international community.” “Swimmer's reputation takes a dive: the embarrassment of China's drug-shamed sports leaders,” Financial Times, 3 December 1994. Earlier in 1994, China became “the first country to flout the conventions of space by parking a satellite in a position that could interfere with other satellites and hinder the Asian ambitions of international broadcasting companies.” “Beijing flouts convention on satellite parking,” Financial Times 2 August 1994.

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37. They continue to appear from time to time. In the early 1980s, even though the leadership had eschewed the use of campaigns, the creation of new legal institutions led to a propaganda offensive to educate the Chinese populace about the new institutions and promote their use. See e.g. Lubman, Stanley, “Emerging functions of formal legal institutions in China's modernization,” China Law Reporter, Vol. 2 (1983), pp. 195266 at p. 238.Google Scholar

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39. Note, “Concepts of law in the Chinese anti-crime campaigns,” Harvard Law Review, Vol. 89 (1985), p. 1890.

40. “Supreme People's Court work report,” p. 19.

41. “Anti-corruption drive starts,” Eastern Express, 20 April 1994.

42. See “Regulations governing public offences,” FBIS-CHI, 16 May 1994, pp. 15–21, a translation of the PRC Regulations for Controlling and Punishing Public Offences, adopted as amended by the Seventh Session of the Eighth National People's Congress, 12 May 1994. The statute was first adopted in 1957.

43. Clarke and Feinerman, p. 143.

44. Tanner, p. 54, citing Pittman B. Potter, “The Administrative Litigation Law of the PRC: judicial review and bureaucratic reform” in Potter, Domestic Law Reforms in Post-Mao China, pp. 270–304. Tanner also mentions that ministries frequently seek exemptions from the coverage of new legislation.

45. Potter, p. 170.

46. “Tian Jiyun on laws for market economy”; see also “Accelerated law-making urged to boost market economy,” translated from Beijing Zhongguo wuzi bao (China Materials Newspaper), 7 March 1994, p. 4 in Foreign Broadcast Information Service, JPRS Report China, 12 May 1994, pp. 14—16.Google Scholar Compare a more tentative formulation: “Since the convocation of the 14th CPC National Congress, a consensus has been established among many people: to a considerable extent, market economy means economy operated under a legal system.” (emphasis supplied), “Xinhua on socialist market economy laws,” FBIS-CHI, 7 July 1993, pp. 18–20 at p. 19.

47. Clarke, p. 65.

48. Ibid. p. 69.

49. Legal rights are also weakly defined because of ideological and political constraints on modifying certain institutions. Thus, although the need for redefining property rights is frequently reiterated, since the onset of economic reforms Chinese debate on redefining property rights has been hampered by the political and economic sensitivity of reforming many loss-incurring state-owned enterprises.

50. Clarke, p. 80.

51. Feinerman, p. 194.

52. “Passion for profit,” Far Eastern Economic Review, 23 June 1994, p. 54–56 at p. 55.

53. Clarke, p. 66.

54. See generally Yin, Yu, “Phenomena of ‘officials’ violating discipline in exercising authority and ways to deal with them,“ Fazhi ribao (Legal Daily), 23 May 1993Google Scholar, translated in FBIS-CHI, 10 June 1993.

55. See e.g. “Xinhua reports on 4th CPC plenum decision,” FBIS-CHI, 6 October 1994, pp. 13–25, at p. 18, describing the weakness of CCP “grass-roots party organizations.”

56. See e.g. “The road from Tiananmen,” The Economist, 4 June 1994, pp. 19–21.

57. See e.g. “Chinese pirates,” Asian Wall Street Journal, 18 February 1994.

58. See e.g. “Circular on school fee collection control,” translated in FBIS-CHI, 21 October 1993, pp. 24–26; “Customs administration to curb illegal fees,” FBIS-CHI, 14 October 1993, pp. 14–15; “Regulations on fees borne by peasants reported,” 12 December 1991 in FBIS-CHI, 10 January 1992, pp. 36–38; “Circular on fees subject to cancellation issued,” FBIS-CHI, 12 November 1993, pp. 59–60 (illegal fees cancelled by Ministry of Finance, State Planning Commission).

59. See e.g. “Customs offices ordered to close tertiary businesses,” FBIS-CHI, 21 October 1993, pp. 41–42; “Ban on Party, government organs doing business,” FBIS-CHI, 22 July 1992; “Party, government offices ordered to server economic ties,” FBIS-CHI, 25 October 1993 p. 18, and “‘Text’ of regulations,” FBIS-CHI, 25 October 1993, pp. 18–20.

60. See e.g. Stone, Brewer S., “Don't get stuck in China,” Asian Wall Street Journal, 23 September 1993Google Scholar; “Enemies in the ranks,” South China Morning Post, 24 April 1994.

61. See e.g. “Guard against the illegal transfer of public assets in the course of moving toward market economy,” Uaowang, 12 April 1993, pp. 13–14, translated as “Economist on illegal transfer of public assets,” FBIS-CHI, 10 May 1993, pp. 31–33.

62. See e.g. Brick, Andrew, “The Emperor of Heilongcun,” Wall Street Journal, 16 July 1993Google Scholar; Sun, Lena, “For China's peasants, abuses by ‘warlords’ adds to their misery,” International Herald Tribune, 12 October 1993.Google Scholar

63. “Rebellion grows in China's cotton fields,” Wall Street Journal, 15 November 1994.

64. See e.g. “Soldiers of fortune: Chinese army fashions major role for itself as a business empire,” Wall Street Journal, 24 May 1994, p. 1; “Gun ban to affect two Chinese firms whose big size will limit injury,” Wall Street Journal, 27 May 1994.

65. See e.g. “China's regulators outgunned in war on fraud,” International Herald Tribune, 18 February 1994: “As China struggles to establish rules to govern securities trading, blatant fraud and insider dealing on the country's stock markets are going largely unpunished.”

66. See e.g. Bowring, Philip, “China: capital flight is hurting the currency and the country,” International Herald Tribune, 5 July 1993Google Scholar; Sender, Henny, “Follow the money,” Far Eastern Economic Review, 14 October 1993, p. 74.Google Scholar

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68. See e.g. Segal, Gerald, “China's changing shape,” Foreign Affairs, Vol. 73, No. 3 (May/June 1994) pp. 4358 at p. 45CrossRefGoogle Scholar: “…Beijing's failure to implement an economic austerity package in the summer of 1993 was almost entirely due to resistance by the rich coastal provinces.”

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70. Potter, p. 184.

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73. Ibid. p. 79.

74. Ibid.

75. Whyte, Martin King, “Urban China: a civil society in the making?” in Arthur Lewis, Rosenbaum (ed.), State and Society in China: The Consequences of Reform (Boulder, CO: Westview Press, 1992) pp. 77101.Google Scholar

76. Ibid. p. 97.

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79. Walder, Andrew G., “Corporate organization and local government property rights in China,” in Vedat, Milor (ed.), Changing Political Economies: Privatization in Post-Communist and Reforming Communist States (Boulder & London: Lynne Rienner, 1994) pp. 5366 at p. 62Google Scholar, citing excellent articles by Jean Oi and Christine P. Wong on the Chinese countryside.

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81. Ibid.

82. Feinerman, p. 190.

83. See e.g. Keith, Ronald C., China's Struggle for the Rule of Law (New York: St Martin's Press, 1994) at p. 48CrossRefGoogle Scholar, referring to traditional Chinese concepts of law: “…law reinforced hierarchy and obligation rather than a notion of rights as separate from obligations.” Compare also Pye, Lucian W., “China: erratic state, frustrated society, Foreign Affairs, Vol. 69, No. 4 (Fall 1990), pp. 5674 at p. 59CrossRefGoogle Scholar, arguing that because the traditional Chinese state, although it “pretended to omnipotence” had limited “policy-implementing authority… Chinese society has gone along with the pretence of official omnipotence while following its own lead and making almost no demands on the government.” A consequence was “the great Chinese political game of feigned compliance. Central authorities issue their ‘absolute’ orders and local authorities proclaim their obedience, even as they quietly proceed to do what they think best. Higher authorities are hesitant to check too carefully about the implementation of their orders for fear that it might reveal their impotence and shatter the pretentions of absolute power.” Pye's views are suggestive for the making and implementation of Chinese law today.

84. Clarke and Feinerman, p. 153.

85. Potter, Pitman B., “Riding the tiger: legitimacy and legal culture in Post-Mao China,” The China Quarterly, No. 138 (June 1994), pp. 328358.Google Scholar

86. “The Chinese civil law… is, in effect, German civil law.” Jones, William C. (ed.), Basic Principles of the Civil Law in China (Armonk, NY: M.E. Sharpe, 1989), p. xvi.Google Scholar

87. See, for examples, Keith, China's Struggle for the Rule of Law, which, however, also concludes - without evidence - that China’ s leadership agrees with the writings of Chinese legal academics as Keith has summarized them.

88. Potter, p. 184.

89. “China's diaspora turns homeward,” The Economist, 27 November 1993, pp. 33–34.

90. “Woo's new wave,” Far Eastern Economic Review, 23 December 1993 pp. 38–39 at p. 39, quoting Peter Woo, Chairman of Wheelock.

91. Ibid.

92. As one observer has noted:” Some cultures do, of course, show a remarkable continuity over long stretches of time. But… a multi-million manufacturing company in Taiwan is not simply a peasant clan writ large…. On the contrary, in some situations, people can drastically change their beliefs and their behavior, often in an amazingly short period of time.” Peter L. Berger, “Is Asia's success transplantable,” Asian Wall Street Journal, 20 April 1994.

93. Except, of course, when they are treated arbitrarily in China. See “Detained HK man vows to clear name,” South China Morning Post, 11 October 1993, quoting a Hong Kong businessman holding an American passport who alleged that he had been illegally arrested in China because of a business dispute with a PRC partner: “I was a so-called China expert, but I have learned more in 40 days in detention than I have in 40 years of academia.”

94. Lubman, Stanley B., “Form and function in the Chinese criminal process,” Columbia Law Review, Vol. 69 (1969), pp. 535575.CrossRefGoogle Scholar

95. Even to the point of believing that “creation of a legal regulatory mechanism can engender the very institution which the law has been created to regulate.” Feinerman, James V., “Backwards into the future,” Law and Contemporary Problems, Vol. 52(1989), pp. 169184 at p. 169.CrossRefGoogle Scholar

96. Alford, p. 36.

97. See e.g. use of the courts by peasants protesting cadre arbitrariness, reported in Croll, Elisabeth, From Heaven to Earth: Images and Experiences of Development in China (London & New York: Routledge, 1994), pp. 132–33.Google Scholar